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As Adam Steinman writes on the Civil Procedure & Federal Courts Blog, people interested in civil procedure, federalism, consumer law and class actions are eagerly awaiting the Court's decision in the Shady Grove case. The question in that case is whether a New York Civil Procedure Law (NYCPLR) prohibiting class actions in a certain class of cases will bar a class action on that type of case from being certified in Federal Court under Rule 23.

Steinman argues that a ruling that the NYrule prohibiting class actions will be applied by the federal court may not be so bad for plaintiffs. Although in this particular case it will bar plaintiffs' class action, in jurisdictions where the state class action rule is more lenient than the federal rule the Court may end up permitting classes to be certified under state procedural law that couldn't have been certified under Rule 23. So the case may end up badly for these plaintiffs, but not for plaintiffs generally because now plaintiff-friendly state class action law will be imported into the federal courts thanks to the Class Action Fairness Act of 2005 (CAFA).

I disagree. I predict that this case will end up being a one way ratchet. I think the Court will rule that because the NY rule bars class actions entirely for this type of case, Rule 23 does not even kick in. But when plaintiffs seek to have a class certified in the absence of an outright ban, Rule 23 does apply and whatever restrictive reading of Rule 23 the federal courts have given will trump more lenient state rules. In other words, the Court is likely to distinguish between cases where the rule bars class actions entirely (the state rule trumps) and cases where the state rule permits class action (the Federal rule trumps). I am not saying this is right or analytically sound, just that this is what I think the outcome will be.

Can this distinction be sustained? I think it will produce a pretty unstable doctrine. But then again, Erie is already pretty unstable and we seem to be living with the instability for some time now.

The more sensible ruling would probaby be to say that CAFA brought these cases into federal court, the manifested intent of Congress in changing the jurisdictional balance of power between the states and the federal courts was that federal rules occupy the field in class actions, and therefore rule 23 should apply to this case. As Steinman points out, this outcome may seem plaintiff friendly today, but given the federal courts' treatment of choice of law issues in national class actions, this is not necessarily a bad outcome for defendants.

Yesterday's New York Times featured a story on trial lawyers' advertising attempts to avoid massive tort reform in the midst of the debate over health care. The debate has a familiar tone to it. Here's an excerpt:

The trial lawyers argue in the ads that patients need legal recourse because preventable medical errors are the sixth-leading cause of death in America, killing at least 98,000 people a year. (The ads’ tag line is: “Tell Congress to Put Patients First. There Are 98,000 Reasons Why You Should.”) The campaign Web site, 98000reasons.org, calls that number equivalent to two 737s crashing every day for a year — and the ads include two small images of planes.

Business groups, including the Chamber of Commerce, say litigation creates cost beyond settlements and awards and the malpractice insurance to cover them. They say it also encourages doctors to practice “defensive medicine” — practices like ordering more tests than needed in order to avoid being called negligent. But the lawsuits are the flashpoint.

“The threat of these ‘jackpot justice’ suits against doctors is one of the reasons health insurance premiums are rising faster than the rate of inflation,” said Senator Jon Kyl, Republican of Arizona.

Below is a list of the law review articles and online companion articles (with a few practice journals thrown in) about mass torts and/or class actions published in 2009. I did not include articles about the new pleading regime, leaving that to the folks over at the Civil Procedure and Federal Courts Blog. If I missed your article, please send me an email with the citation and I'll add it to the list.

Peter Tipps, Note, Controlling the Lead Paint Debate: Why Control is Not An Element of Public Nuisance, 50 B.C. L. Rev. 605 (2009)

Articles in DePaul Law Review Winter 2009 Symposium
The Challenge of 2020: Preparing a Civil Justice Reform Agenda for the
Coming Decade Fourteenth Annual Clifford Symposium on Tort Law and
Social Policy, including

Richard Abel, Forecasting Civil Litigation

Kenneth Feinber, Transparency and Civil Justice: the Internal and External Value of Sunlight

Jeb Barnes, In Defense of Asbestos Tort Litigation: Rethinkign Legal Process Analysis in a World of Uncertainty, Second Bests and Shared Policy-Making Responsibilty, 34 Law & Soc. Inq. 5 (2009)

I am putting together a post of mass tort articles (loosely defined) published in 2009. Gentle readers, if you wrote an article that wasn't mentioned on the blog or that was mentioned and you want to remind me of or you have articles to nominate, please send me an email with your nomination.

Today's Wall Street Journal has an article on increases in Black Lung Disease, Black Lung on Rise in Mines, Reversing Trend, by Kris Maher. Black Lung claims are covered by a federal Black Lung program, which provides an administrative mechanism for compensation, funded by a tax on coal. What's interesting is that the rise in claims occurs despite improving technology, which would be expected to decrease health problems. Thus, the article explores possible causes, such as longer workshifts or more productive machinery that might produce more dust. If machinery is the culprit, it's possible that individual mining companies might have had an incentive to prioritize powerful machinery over safe machinery, if the costs of worker illness are spread throughout the entire industry via a coal tax. (Remedy: return to a system of individual tort claims against mining companies, or at least some administrative/tax penalty for companies with higher Black Lung claims.)

But one other possibility for the rise in Black Lung needs to at least be considered and explored: fraud. Recent events with silicosis are similar: historically falling disease rates in tandem with improving technology, followed by an odd spike in supposed disease incidence. In a now-storied Daubert inquiry, Judge Janis Jack, who herself had a background in nursing, inquired into the basis of expert testimony and diagnosis and uncovered biased and unreliable procedures that may amount to fraud; her discoveries effectively ended what appeared to be a new mass tort. See NPR, Silicosis Ruling Could Revamp Legal Landscape. Concerns of fraud and abuse should be even greater in the context of an administrative program that lacks the adversarial scrutiny of formal litigation. And the Black Lung program has historically been plagued by such problems. A 1989 article in the West Virginia Law Review, authored by a former Department of Labor counsel and a private practitioner, concluded,

[T]he program has been plagued by fraud and abuse. There have been investigations, and indictments, and convictions of agency personnel, claimant's representatives, and medical care providers. The program has been infected by an undercurrent of “petty corruption.” If anything, the program is the most often cited example of why Congress should leave occupational disease compensation to the individual states.

On December 1, 2009 Judge Weinstein issued a ruling granting partial summary judgment to the pharma company Eli Lilly in the lawsuit by the state of Mississippi concerning Zyprexia. The opinion can be found here. The folks over at Drug and Device Law blog discuss the opinion in which they colorfully state "Pigs Get Fat, Mississippi Got Slaughtered."

The opinion is long, but it beautifully lays out the issues of aggregate proof in modern litigation. Judge Weinstein's discussion of the caselaw concerning the Individual Proof Rule is masterful. (slip op 64 - 96). Although Weinstein notes the certification of a Third Party Payor's class action based on aggregate proof (253 FRD 69 (EDNY 2008)), its survival is in doubt because of "the majority of the Courts of Appeals' hostility to the use of aggregate proof...." (slip op at 96).

The Drug and Device Law folks also rightly point to Weinstein's characterization of three "types" of class actions (slip. op at 65):

1. Rule 23 Class Actions - this is what we mean when we say class action, a civil action that can be certified, to which Rule 23 protections apply and which binds all absent class members that do not opt out.

2. Quasi Class Actions - a new category that really ought to be called aggregate litigation. Not a certified class action but a collection of similar cases through an MDL that are resolved together.

3. Structural Class Actions - where an individual plaintiff brings claims based on the underlying claims of large numbers. In this case, the state of Mississippi was bringing claims for reimbursements it provided to thousands of individual patients for their medical costs incurred as a result of their use of Zyprexia. Weinstein explains "In effect, Mississippi's individual claim is structured on the foundation of many thousands of conceptually separate claims, coordinated and aggregated by the State for purposes of recovering a portion of its overall Zyprexa-related costs..."

Quasi class actions, in my view, is really another way of saying aggregate litigation. There's nothing really new about it and there's nothing binding about it as a formal matter. Informally (and that's the quasi part) it can probably feel pretty binding to the plaintiffs. The lengths to which the lawyers in Vioxx went to try to bind plaintiffs and the broohaha that resulted in the legal ethics world illustrates both the non-binding and the feeling of being bound. If the ALI proposals on Aggregate Litigation became the law, that would be a different story.

The structural class actions concept brings to mind punitive damages, especially if you think punitive damages are a form of deterrence, intended to address spillover effects of defendant's conduct that is not accounted for in the compensation part of the lawsuit. See Catherine Sharkey, Punitive Damages as Societal Damages 113 Yale L. J. (2003) (unfortunately you can't download it off SSRN, the link is only to an abstract). This is the part of punitive damages that the Supreme Court was trying to carve out in Phillip Morris v. Williams, but I think conceptually that is impossible to do. On that note, interested readers may want to take a look at Richard Nagareda, Embedded Aggregation in Civil Litigation, forthcoming in the Cornell Law Review and available on SSRN.

My most recent paper, Aggregation, Community, and the Line Between, is now available on SSRN. This paper continues to develop to my larger project on nonclass aggregation, which draws from moral and political philosophy as well as social psychology to contend that groups of plaintiffs in large-scale litigation may have (or could be encouraged to develop) organic or indigenous origins such that social norms and moral obligations provide an internally coercive force keeping litigants together and making external judicial coercion less necessary. Specifically, this Article expands the political philosophy behind this idea and continues the conversation that Professor Lahav and I have started here and here. I'm still in the process of revising the third article in the principal trilogy, Litigating Together: Social, Moral, and Legal Obligations (which suggests ways to implement the theoretical framework developed in Litigating Groups), but I hope to have a draft up in the next month or so.

Here's the abstract for Aggregation, Community, and the Line Between:

As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic—the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp.—the time is ripe to challenge our assumptions about this line in nonclass aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing line or even the correct one. If we are willing to look for genuine cohesion among individuals who are procedurally aggregated but lack sufficiently common traits before the decision to sue, then we will find an alternative, but perhaps more compelling, justification for binding collective interests.

This Article draws on the dominant justifications for group litigation—consent and interest representation—to explore this alternative line-drawing scheme in terms of political theory. Encouraging plaintiffs to form groups and reach decisions through deliberation relies on a mix of individual consent and moral obligation. Allowing plaintiffs to exercise their free will when deciding whether to associate with others preserves the liberal tenet of self-determination and escapes the anti-democratic criticism leveled at class actions. Yet, a purely liberal approach fails to capture the obligatory aspect of reciprocal promises to cooperate and the communal obligations that attach. Although plaintiffs voluntarily enter into the group, once they are group members and have tied together their collective litigation fates, they should not be permitted to exit when doing so violates their commitments. Of course, the community itself determines the content of its members’ rights and obligations to one another. Thus, this Article concludes by explaining the rationale for group autonomy in terms of pluralism and communitarianism.

I'd be very interested to hear comments that readers might have, either by e-mail or in the comments section on this blog.